Tyner v. Cotter

TayloR, J. The learned counsel for the appellants insist (1) that the court erred in finding that the respondents were induced to purchase the lands and accept a quitclaim deed therefor by reason of any false representations made by the appellants or either of them; and (2) that' if the plaintiffs were entitled to recover, the damages allowed by the 'court were excessive. Upon the first point made by the appellants, it is evident that question depends wholly upon the weight of the evidence given on the trial. After a careful reading of all the evidence in the case, we are not only convinced that there is sufficient evidence to sustain the findings of the learned circuit judge, but we are also of the opinion that the preponderance of the evidence is in favor of the findings. Without any attempt to repeat or analyze the testimony, there are certain undisputed facts proved which render it reasonable to suppose that the representations alleged to have been made, were made. First, the original contract, under which the defendants agreed with one of the plaintiffs and the other persons interested that they would purchase and pay for the lands, could be fairly construed to mean that they would make a complete and not partial purchase thereof; second, when the purchase was made and the deed given by the appellants, it was under — 488 — stood by all parties that said purchase was made by the respondents with the intent to immediately cut and remove the timber from the lands, and it is admitted that all the parties well knew that the purchasers of school lands from the state had no authority to cut or remove any timber from the lands so purchased until all the purchase money had been first fully paid (see sec. 220, R. S.); and, third, the clear preponderance of the evidence shows that the price paid by the respondents for the lands conveyed was the full value of the interest the appellants would have had in such lands if the whole purchase price thereof had been paid by them, and was largely in excess of such value in the condi-tionof the title as it proved to be. These considerations had undoubtedly great weight with the learned circuit judge in determining what credibility should be given to the conflicting statements of the witnesses for the respective parties on the trial. His conclusions, we think, are well sustained by the evidence as a whole. That the purchaser of real estate may maintain an action to recover damages of his grantor, even when he takes a quitclaim or other deed without covenants upon such purchase, when he has been induced to make the purchase by means of fraudulent representations made by the grantor for the purpose of inducing him to purchase, and when the purchaser relies upon such fraudulent representations, is well settled by authorities. It is not the character or kind of property sold and purchased which gives the purchaser a right of action against the vendor for practicing á fraud upon the vendee in effecting a sale. It is the fraud of the vendor, and not the kind of property sold, which is the foundation of the action. Nor does the fact that the grantor refused to give a deed with covenants release him from liability for his fraud. In Haight v. Hoyt, 19 N. Y. 464, 474, the learned judge who wrote the opinion very briefly and forcibly meets that objection as follows: “ If a vendor can — 489 — be made liable for a defect of title or the existence of in-cumbrances when be has given no covenants, it does not seem material to inquire 'whether he expressly refused to give them or whether the omission arose from any other cause. If the purchaser consents to waive the usual covenants, he is none the less entitled to the exercise of good faith and honesty on the part of the vendor.” The following authorities are ample to show the right of the respondents to maintain their action for damages resulting from the false and fraudulent representations made by their grantors, upon which they relied in making the purchase: Dart on Vendors, 378, and cases cited; 1 Story’s Eq. Jur. § 208, and cases cited; Rawle on Cov. (4th ed.), 567, 568, and notes; Whitney v. Allaire, 1 N. Y. 305; Doggett v. Emerson, 3 Story, 700, 733; Masson v. Bovet, 1 Denio, 72; Weber v. Weber, 47 Mich. 569, 571; Clark v. Baird, 9 N. Y. 183, 197; Grant v. Law, 29 Wis. 99; Miner v. Medbury, 6 Wis. 295; Hurd v. Hall, 12 Wis. 135; Booth v. Ryan, 31 Wis. 45, 59; Ward v. Wiman, 17 Wend. 193; Wardell v. Fosdick, 13 Johns. 325, 328; Culver v. Avery, 7 Wend. 380; Pitcher v. Livingston, 4 Johns. 1; Sedgwick on Damages, (7th ed.), marg. pp. 207, 208.. It is insisted by the counsel for the appellants that the damages awarded to the plaintiffs were excessive, under the circumstances disclosed by the evidence. It is said the plaintiffs have not been disturbed in their possession, and, for aught that is shown, may never be disturbed. The only possession the plaintiffs have ever had of the purchased lands was such possession as they took by cutting and removing the timber from the land. Since that was done, the evidence does not show the plaintiffs in the actual possession of the lands. The court found, as a fact, that all right which the defendants had to the lands had been long since forfeited to the state, and to this part of the findings of the court no exception was taken by the defendants.' It ap — 490 — pears that when the action was commenced the plaintiffs were not in the actual possession of the lands, and that the title to the lands was in the state or some grantee of the state, holding adversely to the plaintiffs and defendants in this action. The plaintiffs have no such possession of the premises as will interfere with their recovery of any damages they have legally suffered by the fraud of the defendants. It is further urged that, as the plaintiffs have removed the timber from the lands and sold the same and received the purchase money therefor, they have suffered no damage. The plaintiffs having obtained no title to the timber cut and removed from their lands, they are liable to the state or the grantees of the state for the value of the timber so cut and removed from said lands. See secs. 219, 220, 222, R. S. 1818. The money received by the plaintiffs for the logs and timber they have wrongfully cut and removed from the lands of the state, and for the value of which they are liable to the state or its 'grantees, does not in any sense belong to the defendants or inure to their benefit so as to extinguish any claim for damages the plaintiffs may have against them. See Oakes v. Estate of Buckley, 49 Wis. 592, 601. The learned circuit judge, under the evidence, rightly refused to award any damages to plaintiffs for their expenditures in cutting the timber from the lands, because there was no evidence in the case showing that they had been compelled to pay either the state or its grantees for the value of the timber removed from the land, and limited the recovery to such damages as the plaintiffs would have been entitled to recover had their deed contained a covenant of seizin and title in the defendants, or a general covenant of warranty against all persons. The evidence showing that the defendants never conveyed, or had the right to convey, the right to cut and remove the timber on the land, and further showing that whatever right they had to the posses491 sionof the land under their contract with the state had been, forfeited to the state long before this action was commenced, the plaintiffs had the right, as against the defendants, to abandon the possession to the state as rightful owner, and demand, at least, a return of their purchase money. It is urged that it was the duty of the plaintiffs to have ascertained the fact that the state had not parted with its title to the defendants, and protected their title by paying the amount clue on the contracts with the state. But the evidence shows, and the court has so found, that the plaintiffs did not know the situation of the title or the rights of the state until after all right under the contracts had been forfeited. They were not required to exercise any diligence in investigating as to the real title held by the defendants. They had the right to rely on the representations made by the defendants that the lands had been purchased from the state and paid for in full by the defendants, and if all right to the land was lost by their reliance upon such representations it was not the fault of the plaintiffs, but was of the defendants, who made the false representations. This was expressly held by this court in the case of McClellan v. Scott, 24 Wis. 81, 87. There was certainly no greater obligation resting on the plaintiffs, on the representation of the defendants that their title was perfect and the lands paid for, to use diligence in ascertaining the state of the title and perfecting the same by making the necessary payments to the state, than there rests upon the grantee in a deed containing covenants against incumbrances and of general warranty, to ascertain what the incumbrances are and pay them off, to prevent their ripening into a title paramount to the title conveyed to him by the deed. It is the business of the grantor to see that the incumbrances are discharged, and if he suffers them to ripen into a title, and his grantee is evicted by the party holding such title, he is liable to the — 492 — grantee on his covenant of general warranty, and must respond in damages to the full amount of the purchase money and interest thereon from the time the incumbrance ripened into an absolute title, in any event, and perhaps for a longer time, depending upon the circumstances; and it is no defense to any portion of those damages that the grantee might have discharged the incumbrance if he would, by paying a very much smaller sum of money before it became a paramount title. Rawle on Cov. (4th ed.), 268-271. The rule is stated by the learned author as follows: “It has, however, been frequently held in courts of law that the purchaser’s right to recover his damages cannot be affected by the fact that it was in his power to remove the defect of title or incumbrance, nor even that he had, upon offer, refused to do so.” As sustaining this rule, the following cases are cited: Stewart v. Drake, 9 N. J. Law, 143; Miller v. Halsey, 14 N. J. Law, 48; Elder v. True, 32 Me. 104; Chapel v. Bull, 17 Mass. 221; Norton v. Babcock, 2 Met. 510; Lloyd v. Quimby, 5 Ohio St. 265; Burk v. Clements, 16 Ind. 132. In the case of Lloyd v. Quimby, swpra, the learned court says: “ It is true the grantee, while the prior mortgage remained only an incumbrance, might have discharged it if he had possessed the pecuniary ability, and thus saved, himself from eviction; but then, so might the grantor. The grantee, whether able or willing or not, was in no way bound to do it, and he had a right to expect that the grantor would do it; while he, the grantor, was bound to do it, — bound by the obligations of his express covenant.” In the case at bar the defendants were bound to make their representations as to the title good. They knew that the plaintiffs bought relying on their representation that the purchase price had been fully paid to the state. Upon this representation the plaintiffs had a right to rely; and, in addition to that, the court has found, upon sufficient — 493 — evidence, that the plaintiffs had no knowledge that the state had any claim on these lands as against the title conveyed to them by thtf defendants until the title so conveyed had been forfeited and lost. Under this state of facts, it is quite clear that the plaintiffs are as much entitled to recover from the defendants the purchase money paid for the imperfect title as they would have been had the defendants warranted the title to them; and, had they shown any further special damages growing out of their reliance upon the fraudulent representation of the defendants, they would undoubtedly have been entitled to such special damages in addition to the purchase money paid. The learned circuit judge limited the damages to the purchase money, because the evidence prodluced by the plaintiffs did not clearly show that they had suffered any damage other than the loss of the purchase price. "We think the appellants have no cause of complaint as to the measure of damages adopted bjr the circuit court. See note to this case in 30 N. W. Rep. 782.— Rep. By the Court.— The judgmont of the circuit court is affirmed.